Citation Nr: 0503985
Decision Date: 02/15/05 Archive Date: 02/22/05
DOCKET NO. 03-09 487 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder.
2. Entitlement to a compensable rating for a right wrist
sprain with degenerative joint disease.
3. Entitlement to an increased rating for the residuals of a
traumatic blast injury, including headaches, currently
evaluated as 10 percent disabling.
4. Whether new and material evidence has been received to
reopen the previously denied claim for service connection for
the residuals of a cerebrovascular accident as secondary to
service-connected residuals of a traumatic blast injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Kristi Barlow, Counsel
INTRODUCTION
The veteran served on active duty from May 1966 to August
1972, including combat duty in the Republic of Vietnam.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an April 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana, which denied the benefits sought on
appeal. The Board notes that in May 2003, the veteran
withdrew his appeal with respect to the claim for service
connection for a left wrist condition.
The issue of entitlement to service connection for post-
traumatic stress disorder is addressed in the REMAND portion
of the decision below and is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC. VA will
contact the veteran if further action is required on his
part.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran has x-ray evidence of severe degenerative
joint disease of the right wrist with a noncompensable level
of limited motion in that joint.
3. The veteran has palmar flexion in the right wrist to 10
degrees and dorsiflexion to 25 degrees.
4. The veteran experiences non-prostrating headaches almost
daily as a result of an in-service traumatic brain injury.
5. The Board denied entitlement to service connection for
residuals of a stroke as secondary to traumatic blast injury
in a December 1989 decision. The veteran was notified of
that decision.
6. Evidence submitted since the time of the Board's December
1989 decision denying entitlement to service connection for
the residuals of a stroke does not bear directly or
substantially upon the issue at hand, is duplicative and/or
cumulative, and is not so significant that it must be
considered in order to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. Criteria for a 10 percent rating for a right wrist sprain
with degenerative joint disease have been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.40, 4.45, 4.59,
4.71, 4.71a, Diagnostic Code 5003 (2004).
2. Criteria for a rating higher than 10 percent for the
residuals of a traumatic blast injury, including headaches,
have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 4.1-4.16, 4.120, 4.124a, Diagnostic Code 8045-9304 (2004).
3. Evidence received since the Board denied entitlement to
service connection for the residuals of a stroke as secondary
to the residuals of a traumatic blast injury is not new and
material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156(a) (2003).
4. The December 1989 decision of the Board denying the
veteran's claim of entitlement to service connection for the
residuals of a stroke as secondary to the residuals of a
traumatic blast injury is final and the claim is not
reopened. 38 U.S.C.A. §§ 1110, 7104 (West 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Ratings
Disability evaluations are determined by the application of
the schedule of ratings which is based on average impairment
of earning capacity. See 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities. Where
entitlement to compensation has been established and an
increase in the disability rating is at issue, the present
level of disability is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
Right Wrist
The veteran's right wrist disability is currently evaluated
as noncompensable based solely on his limitation of motion in
that joint. The evaluation has been assigned under 38 C.F.R.
Section 4.71a, Diagnostic Code 5215, which allows for the
assignment of a 10 percent rating when there is either
dorsiflexion limited to less than 15 degrees or palmar
flexion limited in line with the forearm.
Degenerative arthritis established by x-ray findings is rated
on the basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
When, however, the limitation of motion of the specific joint
or joints involved is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent is for application
for each such major joint or group of minor joints affected
by the limitation of motion, to be combined, not added under
Diagnostic Code 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. See
38 C.F.R. § 4.71a, Diagnostic Code 5003.
The evidence of record clearly shows that the veteran has
degenerative arthritis of the right wrist with palmar flexion
limited to 10 degrees and dorsiflexion to 25 degrees. Upon
VA orthopedic examination in September 2001, the radial side
of the right wrist was noted to be tender and swollen and
there was crepitation on motion. X-rays confirmed the
diagnosis of severe degenerative joint disease.
Given the evidence as outlined above, the Board finds that
the veteran has severe degenerative joint disease of the
right wrist with a noncompensable level of limited motion in
that joint. Accordingly, criteria for the assignment of a 10
percent evaluation under Diagnostic Code 5003 have been met.
38 C.F.R. Sections 4.40 and 4.45 require the Board to
consider a veteran's pain, swelling, weakness, and excess
fatigability when determining the appropriate evaluation for
a disability using the limitation of motion diagnostic codes.
See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The United
States Court of Appeals for Veterans Claims (Court)
interpreted these regulations in DeLuca v. Brown, 8 Vet. App.
202 (1995), and held that all complaints of pain,
fatigability, etc., shall be considered when put forth by a
veteran. In accordance therewith, and in accordance with
38 C.F.R. Section 4.59, which requires consideration of
painful motion with any form of arthritis, the veteran's
reports of pain have been considered in conjunction with the
Board's review of the limitation of motion diagnostic codes.
Unfortunately, the Board finds that the slight limitation of
motion coupled with the veteran's complaints of pain with
motion is appropriately evaluated with the assignment of a 10
percent rating. The Board notes that ratings higher than 10
percent for wrist disabilities require a showing of
ankylosis. Even though the veteran experiences pain with his
slight limitation of motion, such impairment is not
equivalent to any type of ankylosis. Thus, assignment of a
rating higher than 10 percent for the veteran's right wrist
disability is not appropriate on a schedular basis.
Residuals of traumatic blast injury
The veteran experienced a traumatic brain injury during
service which is manifest by almost daily headaches. This
impairment has been evaluated as 10 percent disabling under
38 C.F.R. Section 4.124a, Diagnostic Code 8045. Purely
neurological disabilities, such as hemiplegia, epileptiform
seizures, facial nerve paralysis, etc., following trauma to
the brain will be rated under the diagnostic codes
specifically dealing with such disabilities. Purely
subjective complaints such as headaches, dizziness, insomnia,
etc., recognized as symptomatic of brain trauma, will be
rated 10 percent and no more under Diagnostic Code 9304.
This 10 percent rating will not be combined with any other
rating for a disability due to brain trauma. Ratings in
excess of 10 percent for brain disease due to trauma under
Diagnostic Code 9304 are not assignable in the absence of a
diagnosis of multi-infarct dementia associated with brain
trauma.
The veteran has requested that his headaches be evaluated
using criteria for migraine found at 38 C.F.R. Section
4.124a, Diagnostic Code 8100. This diagnostic code allows
for the assignment of a 50 percent rating when there is
evidence of very frequent completely prostrating and
prolonged attacks productive of severe economic
inadaptability, a 30 percent rating when there is evidence of
characteristic prostrating attacks occurring on an average of
once a month, a 10 percent rating when there is evidence of
characteristic prostrating attacks averaging one in two
months, and a noncompensable rating when there is evidence of
migraine with less frequent attacks.
The medical evidence reveals that the veteran has been
treated with medication for headaches that have never been
described as migraines. They have been described as sinus
headaches and post-traumatic headaches. The veteran has not
described - nor does the medical evidence show -- prostration
associated with his headaches and there have been no medical
findings even remotely suggestive of the existence of
migraine attacks with characteristic prostration.
The veteran underwent VA neurologic examination in September
2001 and complained of almost daily headaches focused around
the back of his head. He also complained of pain in his
neck. The veteran was noted to have experienced a left-sided
stroke with continued weakness in the left lower extremity.
Following a complete examination, the examiner diagnosed
cerebrovascular disease, cervical spondylosis, and headaches.
Given the evidence as outlined above, the Board finds that
the 10 percent evaluation currently assigned for subjective
complaints of headaches associated with a brain injury is
appropriate as there is no medical evidence of migraines
and/or multi-infarct dementia associated with brain trauma.
Additionally, the record does not show that the veteran
experiences purely neurological disability such as
hemiplegia, epileptiform seizures or facial nerve paralysis
as a result of his in-service brain injury so as to allow for
the assignment of a rating higher than 10 percent based on
impairment stemming from such disability. Accordingly, the
veteran's request for a rating higher than 10 percent for his
residuals of a traumatic blast injury must be denied on a
schedular basis.
Extra-schedular Rating
The VA schedule of ratings will apply unless there are
exceptional or unusual factors which would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides
that, in exceptional circumstances, where the schedular
evaluations are found to be inadequate, the veteran may be
awarded a rating higher than that encompassed by the
schedular criteria. According to the regulation, an
extraschedular disability rating is warranted upon a finding
that "the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that would render impractical the application
of the regular schedular standards."
Although the veteran asserts that he is unemployable because
of his service-connected disabilities, he has not identified
any specific factors which may be considered to be
exceptional or unusual in light of VA's schedule of ratings
and the Board has been similarly unsuccessful. The veteran
has not required frequent periods of hospitalization for
either his right wrist impairment and/or his headaches and
his treatment records are void of any finding of exceptional
limitation beyond that contemplated by the schedule of
ratings. The Board does not doubt that limitation caused by
wrist pain and daily headaches would have an adverse impact
on employability; however, loss of industrial capacity is the
principal factor in assigning schedular disability ratings.
See 38 C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. Section 4.1
specifically states: "[g]enerally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability." See also Moyer v. Derwinski, 2 Vet. App.
289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993) [noting that the disability rating itself is
recognition that industrial capabilities are impaired].
Consequently, the Board finds that the evaluations assigned
in this decision adequately reflect the clinically
established impairments experienced by the veteran and higher
ratings may not be assigned for either right wrist
degenerative arthritis or the residuals of a traumatic brain
injury, including headaches, on an extra-schedular basis.
II. New and Material Evidence
In December 1989, the Board denied entitlement to service
connection for the residuals of a stroke as secondary to the
residuals of a traumatic brain injury, finding that there was
no evidence of the veteran's cerebrovascular accident having
had any etiological relationship with his in-service
traumatic brain injury or the residuals thereof as well as
finding that the cerebrovascular accident was not directly
related to the veteran's period of active service. The
Board's decision is final. See 38 U.S.C.A. § 7104(a);
38 C.F.R. § 20.1100.
The veteran now seeks to reopen his claim of entitlement to
service connection for the residuals of a cerebrovascular
accident as secondary to his in-service traumatic brain
injury. Despite the finality of a prior adverse decision, a
claim will be reopened and the former disposition reviewed if
new and material evidence is presented or secured with
respect to the claim which has been disallowed. See
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. For claims filed
prior to August 2001, such as this claim, "new and material
evidence" is defined as evidence not previously submitted to
agency decision makers which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. See 38 C.F.R. § 3.156(a);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
With these considerations, the Board must now review all of
the evidence which has been submitted by the veteran or
otherwise associated with the claims folder since the last
final decision in December 1989.
At the time of the December 1989 Board decision, the record
included the veteran's service medical records, post-service
treatment records reflecting complaints of headaches
associated with a traumatic brain injury suffered during
service, and November 1987 hospital records for treatment of
a right cerebrovascular accident deemed to be a probable
result of a subcortical event. There was no medical evidence
suggestive of an etiological relationship between the
veteran's in-service brain injury and the cerebrovascular
accident that occurred approximately fifteen years after the
veteran's discharge from service.
Since the 1989 Board decision, the veteran has submitted
duplicate treatment records as well as current treatment
records showing continued left-sided weakness as a result of
the 1987 cerebrovascular accident. Additionally, the veteran
underwent VA neurologic evaluation in September 2001; the
diagnoses included cerebrovascular disease. The medical
evidence, however, does not include any opinion and/or
medical findings linking the veteran's cerebrovascular
accident to his in-service brain injury, the residuals of
that injury, and/or his period of active service in general.
Thus, following a complete review of the record evidence, the
Board finds that the evidence submitted and/or obtained since
the December 1989 decision is not new and material. Although
the treatment records dated subsequent to 1989 and the VA
examination report dated in September 2001 are new because
they were not previously before agency decision-makers, they
are not material because they do not bear directly or
substantially upon the issue at hand. Specifically, the new
evidence does not suggest any link whatsoever between the
veteran's period of active service, the residuals of his in-
service brain injury, and the cerebrovascular accident
suffered many years after his discharge from service. As
such, the Board's December 1989 decision is final and the
claim of entitlement to service connection for the residuals
of a cerebrovascular accident as secondary to the residuals
of a traumatic blast injury, including headaches, is not
reopened.
III. VCAA
The Board has considered the provisions of the Veterans
Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (codified as amended at 38
U.S.C.A. § 5100 to 5107 (West 2002)) which includes an
enhanced duty on the part of VA to notify a claimant of the
information and evidence necessary to substantiate a claim
for VA benefits. It also redefines the obligations of VA
with respect to its duty to assist a claimant in the
development of a claim. Regulations implementing the VCAA
have been enacted. See 66 Fed. Reg. 45,620 (August 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)). Also see Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).
The Board has carefully considered the provisions of the
VCAA, the implementing regulations, the United States Court
of Appeals for the Federal Circuit's (Federal Circuit)
decisions in Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and
Paralyzed Veterans of America v. Secretary of Veterans
Affairs, 345 F. 3d 1334 (Fed. Cir. 2003), which invalidated
portions of the implementing regulations, the Veterans
Benefits Act of 2003, Pub. L. No. 108-183, Section 701, 117
Stat. 2651 (Dec. 2003), and the United States Court of
Appeals for Veteran's Claims (Court) decisions in Pelegrini
v. Principi, 17 Vet. App. 412 (2004) (Pelegrini I), and
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II), which addressed the timing and content of proper VCAA
notice. Following a complete review of the record evidence,
the Board finds, for the reasons expressed immediately below,
that the development of the claims here on appeal has
proceeded in accordance with the law and regulations.
Duty to Notify
VA has a duty under the VCAA to notify an appellant and his
or her representative of any information and evidence needed
to substantiate and complete a claim as well as to inform the
appellant as to whose responsibility it is to obtain the
needed information. The veteran was informed of the
requirements of the VCAA specifically and in detail in a
letter dated in June 2001. The Board finds that the
information provided to the veteran specifically satisfied
the requirements of 38 U.S.C.A. Section 5103 in that he was
clearly notified of the evidence necessary to substantiate
his claims and the responsibilities of VA and the veteran in
obtaining evidence. The letter stated that (1) the evidence
needed to substantiate the veteran's claims was, among other
things, evidence that the veteran currently had a disability
as a result of an in-service injury or disease and evidence
that service-connected disabilities were more severe than
rated, (2) VA would obtain relevant records from any Federal
agency and relevant records identified by the veteran, and
(3) the veteran is responsible for supplying VA with
sufficient information to obtain relevant records on his
behalf and is ultimately responsible for submitting all
relevant evidence not in the possession of a Federal
department or agency.
Although the June 2001 letter did not specifically advise the
veteran to " provide any evidence in the claimant's
possession that pertains to the claim", which was considered
by the Court to be a fourth element of the Section 5103(a)
notice, the December 2002 SOC did include the text of
38 C.F.R. § 3.159, from which the Court took that fourth
element of notification. Moreover, the veteran has reported
that he has no additional evidence to submit. The Board also
notes that although the Court in Pelegrini I and again in
Pelegrini II indicated that there was a fourth element of
notification, VA General Counsel rendered a Precedential
Opinion in February 2004, finding that 38 U.S.C. Section
5103(a) does not require VA to seek evidence from a claimant
other than that identified by VA as necessary to substantiate
the claim. See VAOPGCPREC 1-2004 (Feb. 24, 2004). Thus,
under these circumstances, the Board finds that the
notification requirement of the VCAA has been satisfied.
Duty to Assist
The VCAA provides that VA shall make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate his or her claim unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include making reasonable
efforts to obtain relevant records that a claimant identifies
and providing a medical examination or obtaining a medical
opinion when such an examination or opinion is necessary to
make a decision on the claim.
After reviewing the record, the Board finds that VA has
complied with the VCAA's duty to assist by aiding the veteran
in obtaining evidence and affording him physical
examinations. It appears that all known and available
records relevant to the issues here on appeal have been
obtained and are associated with the veteran's claims file
and the veteran does not appear to contend otherwise. In
fact, the veteran advised VA in August 2001, that he had no
additional evidence to submit. Furthermore, the veteran was
given the opportunity to testify before an RO hearing officer
and/or the Board, but declined to do so.
The Board notes that the veteran's representative, in its
December 2004 Appellant's Brief, requested that the claim of
entitlement to an increased rating for the residuals of a
traumatic blast injury be remanded for another VA examination
to determine the frequency of the veteran's headaches. The
Board specifically finds that additional development of the
medical record with respect to this issue is not warranted as
the treatment records and VA examination report of record
show consistent complaints of headaches on an almost daily
basis.
Thus, the Board finds that VA has done everything reasonably
possible to notify and to assist the veteran and that no
further action is necessary to meet the requirements of the
VCAA and the applicable implementing regulations.
ORDER
A 10 percent rating for right wrist sprain with degenerative
joint disease is granted, subject to the laws and regulations
governing the award of monetary benefits.
A rating higher than 10 percent for the residuals of a
traumatic blast injury, including headaches, is denied.
New and material evidence having not been received, the claim
of entitlement to service connection for the residuals of a
cerebrovascular accident as secondary to the residuals of a
traumatic blast injury, including headaches, is not reopened.
REMAND
The evidence of record shows that the veteran served
honorably during the Vietnam conflict and was awarded both a
Combat Infantryman's Badge and Purple Heart for service in
the Republic of Vietnam. As early as April 1987, health care
professionals have considered a diagnosis of post-traumatic
stress disorder as a result of the veteran's complaints of
nightmares, difficulty sleeping and difficulty concentrating
since his service in Vietnam. Medical evidence also suggests
that the veteran just began treatment for post-traumatic
stress disorder in 2002. The record does not, however, have
a confirmed diagnosis of post-traumatic stress disorder by a
psychiatrist.
In September 2001, the veteran underwent VA psychiatric
examination and was found to have depression and a nightmare
disorder and the examining psychiatrist noted that there may
be some "symbolic representation" of combat experiences in
the veteran's nightmares. In January 2002, a VA psychology
intern reported that the veteran had been referred to the
post-traumatic stress disorder clinic and met the diagnostic
criteria for post-traumatic stress disorder. As noted above,
however, the record does not contain a confirmed diagnosis of
post-traumatic stress disorder by a psychiatrist. Thus, in
an effort to fully assist this combat veteran in
substantiating his claim of entitlement to service connection
for a psychiatric disorder, this matter must be remanded to
further develop the medical record.
If an examination is scheduled, the appellant is hereby
notified that it is the appellant's responsibility to report
for the examination and to cooperate in the development of
the case, and that the consequences of failure to report for
a VA examination without good cause may include denial of the
claim. 38 C.F.R. §§ 3.158 and 3.655 (2004).
Therefore, this matter is REMANDED for the following action:
1. The RO should obtain all treatment
records from the post-traumatic stress
disorder clinic attended by the veteran
at the New Orleans Medical Center. These
records should be associated with the
veteran's claims folder.
2. If the treatment records obtained do
not include a diagnosis of post-traumatic
stress disorder by a psychiatrist which
meets the criteria of the Diagnostic and
Statistical Manual of Mental Disorders,
Fourth Edition, Washington, D.C.,
American Psychiatric Association (1994)
(DSM-IV), the RO should schedule the
veteran for a VA psychiatric examination.
The examiner should review the veteran's
claims folder, including all treatment
records, perform all appropriate testing,
and render an opinion as to whether the
veteran suffers from any psychiatric
disorder as a result of his period of
active service. The examiner is to be
advised that the veteran has a verified
period of combat service in the Republic
of Vietnam and, as such, a stressful
event is presumed. All opinions must be
supported by complete rationale.
3. When the development requested has
been completed, the case should again be
reviewed by the RO on the basis of the
additional evidence. If the benefit
sought is not granted, the veteran and
his representative should be furnished a
Supplemental Statement of the Case and
afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The purpose of this REMAND is to obtain additional
development and the Board does not intimate any opinion as to
the merits of the case, either favorable or unfavorable, at
this time. The veteran is free to submit any additional
evidence and/or argument he desires to have considered in
connection with his current appeal. No action is required of
the veteran until he is notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs